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2012 DIGILAW 411 (CAL)

Vinod Kapur v. Chabi Pyne and Others

2012-05-03

TARUN KUMAR GUPTA

body2012
Judgment :- Tarun Kumar Gupta, J. One Sri V. K. Kapoor, claiming to be the sole proprietor of M/s. Queen Power Engineering Company has filed this appeal against the judgment of remand dated 31st August, 1996 and decree dated 7th September, 1996 passed by the learned Assistant District Judge, 2nd Court, Howrah, in Title Appeal No.81 of 1985 by reversing the judgment of dismissal of the suit on the ground of maintainability passed by the learned Munsif, 5th Court, Howrah, in Title Suit No.252 of 1990 vide Order 97 dated 24th February, 1995. The respondent, as plaintiff, filed a suit for eviction against M/s. Queen Power Engineering Works, a partnership firm, on the ground of expiry of lease dated 26th August, 1965 by efflux of time. Mr. V. K. Kapoor (since deceased) appeared claiming to be sole proprietor of M/s. Queen Power Engineering Works on the ground that said partnership firm dissolved on 31st March, 1988 and he continued to possess said property to run the business as its sole proprietor. Said Mr. Kapoor filed applications under Section 17(2) of the West Bengal Premises Tenancy Act, for addition of party under Order 1 Rule 10(2) of the Code of Civil Procedure and under Order 30 Rule 1 (1) of the Code of Civil Procedure. Learned Trial Court rejected the application filed by Mr. Kapoor for being added as a party under Order 1 Rule 10(2) of the Code of Civil Procedure vide Order No.13 dated 25th September, 1999. Mr. Kapoor preferred a revisional application against said order being Civil Order No.39 of 1992. After contested hearing High Court affirmed said Order No.13 dated 25th September, 1999 passed by the learned Trial Court rejecting Mr. Kapoor’s application for being added as a party under Order 1 Rule 10(2) of the Code of Civil Procedure as the sole proprietor of M/s. Queen Power Engineering Works. However, learned Trial Court on the basis of an application filed by Mr. Kapoor challenging the maintainability of the suit dismissed the same being not maintainable. Being aggrieved against said order of dismissal dated 24th February, 1995 respondent /plaintiff filed an appeal being Title Appeal No.81 of 1995 challenging said order of dismissal on the preliminary point of maintainability of the suit. Kapoor challenging the maintainability of the suit dismissed the same being not maintainable. Being aggrieved against said order of dismissal dated 24th February, 1995 respondent /plaintiff filed an appeal being Title Appeal No.81 of 1995 challenging said order of dismissal on the preliminary point of maintainability of the suit. Learned Lower Appellate Court allowed said appeal by way of setting aside the order of dismissal and remanded back the matter to the learned Court for a decision of the suit on merit in accordance with law after framing necessary issues on the basis of the pleadings of the parties. Being aggrieved with the said order Mr. Kapoor (since deceased) has filed this appeal alleging that the learned Lower Appellate Court made substantial error of law in holding that the suit against the dissolved partnership firm bereft of partners was maintainable, and that Mr. Kapoor had no locus standi to participate in the proceedings as proprietor of the firm. It is further case of the appellant that learned Lower Appellate Court further committed substantial error of law in deciding those two issues when he was of the opinion that those issues were mixed questions of law and fact and should have been decided on evidence. At the prayer of learned counsel for the appellant the following substantial question of law is framed in this case for disposing of this appeal against an order of remand. Whether learned Lower Court of Appeal made substantial error of law in deciding the issues of locus standi and maintainability of the suit on merit when he himself opined that those cannot be decided without taking evidence. Mr. Asis Bagchi, learned counsel for the appellant submits that a partnership firm is a distinctive entity and partnership property belongs to the partners of said firm. In support of his contention he relies on a decision reported in (2003) 3 SCC page 229 (N. Khdervali Saheb vs. N. Gudu Saheb and Ors. In that case it was held that a partnership firm is not an independent legal entity and the partners are the real owners of the assets of the partnership firm. In support of his contention that a partnership firm is not a legal entity he also referred a case law reported in AIR 1980 SC page 176 (M/s. Malabar Fisheries Co. vs. The Commissioner of Income Tax, Kerala). Mr. In support of his contention that a partnership firm is not a legal entity he also referred a case law reported in AIR 1980 SC page 176 (M/s. Malabar Fisheries Co. vs. The Commissioner of Income Tax, Kerala). Mr. Bagchi has also referred to a case law reported in AIR 1973 Gujarat page 57 (Sajjanraj Swarupchand vs. Mehta Commercial Co.) to impress upon this Court that a suit against a dissolved partnership firm was not maintainable. His further contention is that even if the appellant was not permitted to add as a party in said suit under Order 1 Rule 10 (2) of the Code of Civil Procedure in the capacity of the proprietor of said firm still he had locus standi to contest the suit for ejectment being interested to the lease hold property under Order 1 Rule 8 A of the Code of Civil Procedure. Mr. Probal Mukherjee, learned counsel for the respondent plaintiffs, on the other hand, submits that there was no legal bar to file a suit against a partnership firm without impleading the partners of the firm in terms of Order 30 Rule 1 of the Code of Civil Procedure. In support of his contention he referred case laws reported in (1998) 5 SCC page 567 (Ashok Transport Agency versus Awadhesh Kumar and another and 2006 (3) CHN page 142 (National Traders vs. Srimanta Auddy). He further submits that at no point of time any intimation was given to the plaintiffs lessors about alleged dissolution of the partnership firm and hence without taking evidence it cannot be said that the suit was filed against a dissolved partnership firm. Mr. Mukherjee further submits that as the original appellant Mr. Kapoor was debarred from participating in the proceedings of the suit being impleaded as a party under Order 1 Rule 10(2) of the Code of Civil Procedure he had no authority to contest said suit and resultantly to file the appeal. I have considered submissions made by counsels of both sides and also perused that case laws referred by them. Kapoor was debarred from participating in the proceedings of the suit being impleaded as a party under Order 1 Rule 10(2) of the Code of Civil Procedure he had no authority to contest said suit and resultantly to file the appeal. I have considered submissions made by counsels of both sides and also perused that case laws referred by them. In terms of Order 14 Rule 2 of the Code of Civil Procedure a Court is required to pronounce judgment on all issues even if a case may be disposed of on a preliminary issue unless said preliminary issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Admittedly, the alleged non-maintainability of the suit was not covered by any of the exceptions as made out under Order 14 Rule 2 of the Code of Civil Procedure as stated above. As such learned Lower Appellate Court was justified to hold that learned Trial Court should not have disposed of the entire suit on a preliminary issue of maintainability when said issue of maintainability was a mixed question of law and fact. However, it is also true that in the process learned Lower Appellate Court made elaborate discussions as to the maintainability of the suit as well as locus standi of the present appellant though he himself was of the opinion that those issues being mixed question of law and fact should be decided after trial. As the suit is required to be disposed of by learned Trial Court on all issues after taking evidence I refrain from making any observation on the points raised by learned counsels of the parties touching maintainability of the suit as well as locus standi of the appellant to participate in the suit, lest the same may influence learned Trial Court at the time of final disposal of the suit. I like to keep all the issues open for being decided by learned Trial Court on merit after recording evidence as per law. Accordingly, this appeal is allowed in part. The impugned judgment and decree of learned Lower Appellate Court so far as it related to his observations regarding maintainability of the suit and locus standi of the appellant are set aside. Accordingly, this appeal is allowed in part. The impugned judgment and decree of learned Lower Appellate Court so far as it related to his observations regarding maintainability of the suit and locus standi of the appellant are set aside. However, the order of learned Lower Appellate Court regarding setting aside the order of dismissal of the suit on the preliminary issue of maintainability by learned Trial Court is sustained. The case is remanded back to the learned Trial Court for disposal of this case on merit as per law. As the suit was filed as far back as in 1991, Learned Trial Court is hereby requested to take all necessary steps for final disposal of the suit within six months from the date of receipt of the Lower Court records. Office is directed to send Lower Court records immediately along with a copy of this order. Urgent Photostat certified copy of this order be supplied to learned counsel /counsels of the parties, if applied for.